MZXLW v Minister for Immigration
[2007] FMCA 187
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXLW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 187 |
| MIGRATION – Refugee Review Tribunal – applicant’s failure to attend hearing – whether Tribunal able to proceed under s.426A – whether breach of s.424A – whether Tribunal considered integers of claim. |
| Migration Act 1958, ss.424A, 425, 425A, 426A |
| ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | MZXLW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1124 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 22 February 2007 |
| Date of Last Submission: | 22 February 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The title of the proceeding be amended so that the name of the first respondent is Minister for Immigration and Citizenship.
The application filed on 7 September 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1124 of 2006
| MZXLW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 7 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 August 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant a protection visa to the applicant.
The applicant is a 46 year old male citizen of Sri Lanka. He arrived in Australia on 17 October 2004, as the holder of a visitor visa. On
12 November 2004, the applicant applied for a protection visa. On
2 May 2005, a delegate of the first respondent refused the protection visa application. On 25 May 2005, the applicant applied to the Tribunal for review of the decision of the delegate. On 2 February 2006, the Tribunal handed down its decision affirming the decision of the delegate refusing to grant a protection visa to the applicant.
On 2 March 2006, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. On 12 April 2006, consent orders were made remitting the matter to the Tribunal for further hearing.
On 11 August 2006, the reconstituted Tribunal handed down its decision affirming the decision of the delegate refusing to grant a protection visa to the applicant.
On 7 September 2006, an application for judicial review of the Tribunal’s decision and an affidavit sworn by the applicant on that date were filed in this Court. Contentions of fact and law were filed by the applicant on 30 January 2007 and by the first respondent on
12 February 2007. On 15 February 2007, affidavits sworn by John Hough and Patricia Brakha on that date were filed by the first respondent.
Initial claims
In his protection visa application, the applicant said that he was born in 1960 and obtained a diploma in refrigeration and air conditioning.
He lived in Sri Lanka except between 2001 and 2004 when he lived in Nairobi.
The applicant set out the grounds for his claim for protection in a statement attached to his application. In the statement, the applicant said that he had been involved in Sri Lankan politics since 1990 although he had been associated with the UNP from 1984. He claimed that in 1990, he left paid employment and became self employed and worked during his leisure time for the UNP. The applicant claimed that he supported the UNP candidates for the Matale District in the 1994 election which was won by the People’s Alliance. The applicant’s claims continued:
Because I worked for the UNP my political opponents threatened me and harassed and persecuted me as they were in government. I have given my vehicles/van and lorries to help the UNP. They damaged these vehicles during the election. I was assaulted by these people on several occasions.
Because I was careful I escaped death. My political opponents tried several times to assassinate me. On the 10 October 2000 General Elections the PA and the JVP coalition won the election defeating the UNP. I was the Deputy President of the UNP at Rattota at that time. After the election I was helpless. I have given some of my vehicles to the campaign. My enemies noted these things and damaged the vehicles and wanted take revenge after the election. They damaged windscreens and cut the tyres.
I was hospitalised on several occasions due to attack from political opponents. I have x-ray reports to support these. I have complained to the Police by they did not take down my complaints, but on some occasions they took down my complaints, and they did not follow up the investigations. Therefore my businesses also not successful. I was in the brink of bankruptcy. In the year 2001 there was a election in the month of December again I worked for the UNP. I worked for the Election of Ranil Wickremasinghe. On this occasion former PA minister Nandimithra Ekanayake crossed over and took UNP membership. As he was our nominee for the Rattota electorate I worked tirelessly for him. Because of this some of the thugs of the Minister Janaka Thennekoon followed me and was conspiring to kill me. In addition Provincial Council Member Angammana and Yalegama also followed me to harass me. I used to get numerous anonymous calls to my home phone. Because I wanted to live, I was a bit careful not to go out in the night and lived in hiding in the house. These people are against me because I was one of the main financial supporters for the UNP in the Matale District and I give my vehicles and drivers to the campaign.
Because I had lot of problems during the December 2001 election, with the help of Mr. Nandimithra Ekanayake who have lot of influence in Sri Lanka, I went to Kenya with his help on the day of the election. The UNP won the election but Mr Nadimithra Ekanayake our candidate for Rattota lost his seat. Luckily during that period I was out of the country, if I were there they would have easily killed me.
I stayed in Kenya about two years and came to Sri Lanka on the 23rd of January 2004. I stayed in Rattota. My old political opponents knew that I have arrived in the village and they started following me. But they did not do me any harm as my father was very ill and ultimately he died. There was the 3 month alms giving and most of the villagers were keep coming during that period.
I worked for the UNP again for the election of April 2004. I supported Mr Nadminithra Ekanayake and he lost the election. The UNP lost the election and I was helpless and my political enemies were jubilant. I requested Mr Ekanayake to send me to Australia or any other country to save my life. He made arrangements to send me to Australia.
Immediately after the election we (my wife and child) went to my sister-in-law’s place in the Puttalam District. We went to her place to spend some days as we were threatened with death by our political enemies. My opponents some or other knew that I was living in Puttalam and ultimately I decided to leave the country.
I submitted the relevant papers to the Australian High commission and they interviewed me and on the 28th June 2004 they issued me a visa to come to Australia. On the 17th October 2004 I arrived in Melbourne, Australia. Mr Ekanayake made all the arrangements for my departure. He instructed me not leave in the month of June and asked me to wait until he gives a date for my departure.
My wife says that she received several anonymous telephone calls to her threatening me not to arrive in Sri Lanka. If I come to Sri Lanka they will finish me. I am a father of a 10 year old daughter. My parents are not living. Only my wife and daughter is in my home. My wife’s parents are old and feeble. I have no intention of returning to Sri Lanka as long as there are threats to my life. My opponents are very powerful and they associate underworld gangsters who kill people on behalf of the politicians. I have no security in that country. Police are not investigating any of the complaints made by me.
I request the Australian government to consider my application and treat me as a refugee in this country.
The delegate refused the application on the basis firstly that the applicant was an ordinary supporter of the UNP and had no profile to found a fear of future harm, and secondly that there was effective state protection in Sri Lanka.
Proceedings before the first Tribunal
On 28 September 2005, the Tribunal received a number of documents and photographs from the applicant in support of his review application, including:
a)six invitations issued by the UNP to the applicant to attend UNP functions, training courses and meetings, including a meeting of the National Executive of the UNP, between 1995 and 2001;
b)a letter dated 9 March 2005 to the applicant asking him to give leadership to his Division in a membership drive;
c)an extract from the information book of Rattota Police Station setting out a complaint made by the applicant about an assault on the applicant and his family in their home by supporters of the People’s Alliance Party on 10 April 2004;
d)certification that the applicant completed a Training Course on party organisation, election campaign strategies and communication and referendum conducted by the education division of the UNP in January 1996;
e)a letter from the General Secretary of the UNP dated 4 March 2004 advising of the opening of an operation room for the forthcoming elections at the UNP party headquarters;
f)a letter dated 1 July 2000 from the President of the UNP advising the applicant that he had been appointed as the party’s Cluster Core Organiser at Rattota;
g)a newspaper clipping titled “Donation of a computer to Ratota information technology unit”;
h)an x-ray report dated 30 April 1999;
i)a photograph of the applicant with an arm injury;
j)a photograph showing the applicant with a leader of the UNP; and
k)a letter dated 4 October 2005 to the applicant from his wife saying that party people had said they will kill the applicant if he returns to Sri Lanka.
At the Tribunal hearing on 20 October 2005, the applicant gave oral evidence about his claims, summarised by the Tribunal as follows:
He stated that he has a lot of connections with the UNP and the people from the PA are against him; he has faced a lot of problems. When asked what he thought would happen to him on return he replied that things were hotting up in Sri Lanka in view of the 17 December 2005 presidential elections.
He outlined his work for the UNP, how he had facilitated election campaigns by making available to the UNP vehicles from his transport business. He stated that his business failed three or four months before his father died in December 2003 while he was in Kenya for work. He had left Sri Lanka on the day of the 2001 general elections and returned on 21 January 2004. He stated that he worked in Kenya illegally in a garment factory; he had only a tourist visa. He said that he was involved in the UNP as Deputy President of the seat. He gave instructions to the people re canvassing and village development. He was in this position for two years from 1998 to 2000. He claims to having been pursued by two members of the Pradeshiya Sabah since 1999. He stated that the photos he submitted which show an injury to his left arm are from November 2001 when he was assaulted with a club. He did not go to the police to complain at the time. He went to them subsequently and they took down his complaint but did nothing about it. The reason he was assaulted was because he had the vehicle to canvass supporters.
Asked why he would be targeted now, he stated that he has a quarry which was owned by his wife on the Kandy-Matale highway. He stated that his wife and daughter are living in Kandy.
He was asked why he waited to depart Sri Lanka until 17 October 2004 when he had been granted a visa in June; he replied that he was waiting for an opportunity to leave s his political enemies were watching him.
By letter dated 7 December 2005, the Tribunal wrote to the applicant inviting him to comment on the following information:
As indicated to you at the hearing the Tribunal was concerned about two of the photographs you supplied (the one with the leader of the UNP and another of a flag raising ceremony in front of the Rattota Pradeshia Sabha). The Tribunal has had these photos examined by the Document Examination Unit and is of the view that they have been altered by the insertion of an image of yourself in both cases.
You also supplied the Tribunal with a photocopy and translation of a newspaper article from the ‘Lankadeepa’ newspaper which purports to show you and the Chief Minister of the Central Province, Wasantha Aluvihare in a new Computer Unit at the Information Technology Unit of the Rattota Pradeshia Sahba. The date of the newspaper indicated on the copy is 30 January 2004, while the English translation states it is from the 30 July 2004 edition of the paper. The Tribunal has obtained originals of the said newspaper from Sri Lanka for both 30 January 2004 and 30 July 2004 and notes that no such article appears in either paper.
On 30 December 2005, a response to the Tribunal’s invitation was forwarded by the applicant’s migration agent. It said that the applicant instructed that the two photographs were authentic and asked for a copy of the Document Examination Unit report for further comment. It also requested further time to make inquiries about the article as the applicant believed it could have been published on a different date. By letter dated 9 January 2006, the Tribunal refused the applicant’s requests for reasons which it gave.
The Tribunal affirmed the delegate’s decision. Apparently because of deficiencies in the s.424A notice sent to the applicant on 7 December 2005, the decision handed down on 2 February 2006 was set aside by consent and the application was remitted to the Tribunal, differently constituted, for further hearing.
Proceedings before the second Tribunal
By letter dated 16 June 2006, the Tribunal wrote to the applicant inviting him to comment on information that might lead the Tribunal to conclude that the applicant had exaggerated his profile within the UNP and cast doubt on his claims to have been injured during campaigning. Three pieces of information were identified, being:
·The information is that the Document Examination Unit considered two of the photographs you submitted could have been altered by the insertion of your image. The information also is that the Lankadeepa newspaper did not in fact carry the newspaper article, a copy of which you purported to submit, concerning yourself and Wasantha Aluvihare.
·The information also is that you claim your arm injury took place in November 2001 whereas the x-ray you submitted is dated 30 April 1999.
·The information also is that, although you claimed to have been UNP Deputy President for Rattota from 1998 to 2000, the documents you submitted indicate that you were no more than a supporter, appointed “cluster core organiser” in July 2000.
By letter dated 30 June 2006, the applicant’s agent wrote to the Tribunal, stating that:
a)the applicant maintained the photograph contained in the newspaper article was authentic;
b)the x-ray submitted did not relate to the injury caused to his arm in November 2001 but an injury caused by a political opponent in an earlier incident; and
c)the applicant was the UNP Deputy President for Rattota Village Council in 2000 but also held the post of “cluster core organiser” closer to the general election until its conclusion.
In its reasons for decision, the Tribunal described the events leading up to the second hearing in this matter. It said that:
On 4 July 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 July 2006. On 12 July 2006 the applicant advised the Tribunal that he wanted to attend the hearing. However, after arriving at the Tribunal, the applicant left before the hearing could commence. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal made findings and set out its reasons as follows:
The Tribunal accepts, based on the documentary evidence, that the applicant was actively in the UNP from the mid-1990s to 2000, and that the Party continues to correspond with him based on that past involvement.
The Tribunal is not satisfied that the applicant was ever threatened or harmed in connection with his UNP involvement. There are two reasons for this, detailed below. One is that the Tribunal is not satisfied that the applicant’s profile was such as to make him a target. Two is that the applicant has only adduced minimal evidence of harm.
On the evidence before it, the Tribunal is not satisfied that the applicant was ever “Deputy President” of the UNP for Rattota. Given the material he has kept, it would have expected some record of such an appointment. The Tribunal is not satisfied that the applicant lent vehicles to the UNP’s election campaigns; in the hearing it would have asked the applicant for more details about the vehicles, his ownership of them and how they were used in the campaigns. The Tribunal is not satisfied that the applicant has met or appeared publicly with the UNP leader. The document examiner’s comments concerning the posing and lighting of the pictures of those claimed events strongly indicate that they are not genuine. The Tribunal is not satisfied that the applicant was involved in the campaign for Nandimithra Ekanayake for the December 2001 elections or for the 2004 elections; again the Tribunal would have wished to ask the applicant a number of questions about the campaign, about Ekanayake, and about Ekanayake’s defection from the PA and the impact that had locally. It would have asked him about his relationship with Wasantha Aluvihare in 2004, given that he had submitted a news article with photograph of the two of them that, the Tribunal finds, is fabricated. The Tribunal is satisfied that the applicant has exaggerated his profile in the UNP.
Of the many and serious incidents of harm or threatened harm he claimed, the applicant was able to supply evidence in the form of photographs of a head and arm injury, documents relating to a 1999 X-ray, and a police report. If the photographs are genuine they show only that he has been hurt, but not how. The applicant has supplied no detail about how he came to require an X-ray in 1999. The police information report only shows that the applicant made an allegation to the police, not that the allegation is true. Given the claims he has made, the Tribunal would have expected the applicant to supply hospital records, more records of police complaints, records of reports to the UNP and to the bodies that monitor election violence in Sri Lanka. This would have been discussed at the hearing.
The Tribunal is not satisfied that the applicant was ever assaulted, that he was hospitalised on several occasions, that there was ever an assassination attempt against him, or that he was followed and harassed. It does not accept that he received threatening phone calls at home. It does not accept that on his return from Kenya he was involved in the April 2004 election campaign, or that he and his family were threatened with death. It does not accept that his house was raided in April 2004. It does not accept that his wife has since been accosted and threatened as claimed.
On the limited evidence before it, the Tribunal is not satisfied that the applicant has had an active role in the UNP since returning from Kenya. This would have been discussed at the hearing. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm for reason of his political opinion, in the reasonably foreseeable future.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Ground 1: the hearing
The applicant’s first ground of review is:
1.The Tribunal has not given the applicant a hearing and as a result breached sections 425 & 425A of the Migration Act 1958.
The applicant filed an affidavit sworn by him on 7 September 2006.
It said, relevantly, “I went for the hearing but was not given a hearing.” The applicant’s contentions of fact and law in relation to this ground said as follows:
FACT
…
2.The applicant was invited by the Tribunal for a hearing on 28th July 2006 and he arrived at the Tribunal on the specified time and reported his presence to the counter staff. He alleged that his attendance was marked and he was asked to wait until the interpreter turns up. He claimed that he was sitting at the reception area for more than an hour as ordered and subsequently told by a staff member that the hearing will be rescheduled due to the non availability of an interpreter. He left the area believing that he will be notified the new date.
CONTENTIONS OF LAW
3.The applicant contents (sic) that he did appear before the Tribunal on the day on which or at the time and place at which, the applicant was scheduled to appear and as such the Tribunal’s decision to invoke section 426A of the Act was a jurisdictional error.
The first respondent’s written contentions in relation to this ground stated:
The applicant’s attendance at the Tribunal
[16] The applicant contends that he did appear before the Tribunal on the day on which or at the time and place at which, he was scheduled to appear and as such the Tribunal’s decision to invoke s426A of the Act constituted an error which was jurisdictional.
[17] The applicant attended at the reception counter at the Tribunal registry for the Tribunal hearing, and his attendance was recorded. He was asked to wait to be called for the hearing to commence. However, when the applicant was called to attend the Tribunal hearing at about 10.15am, he was unable to be located at the Tribunal premises. The first respondent denies that the applicant was told, as he claims in his contentions, that the hearing was to be re-scheduled due to the non-availability of an interpreter.
[18] There was no error in the Tribunal in the circumstances proceeding to make a decision in the absence of the applicant. The Tribunal may proceed to determine an application for review before it in the absence of an applicant at a Tribunal hearing: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134.
The affidavit of Patricia Brakha sworn on 15 February 2007 and relied on by the first respondent stated as follows:
[1] I am currently employed as an administrative officer, APS level 3 at the Migration Review and Refugee Review Tribunal (“MRT-RRT”), Melbourne Registry, Level 12, 460 Lonsdale Street, Melbourne.
[2] My designated position at the RRT is that of a Client Services officer. I perform counter duties on a regular basis. My duties include attending to persons arriving at the MRT-RRT for scheduled hearings. The MRT-RRT keeps a hearing schedule at the reception counter. When an applicant arrives for a hearing and attends at the reception counter, it is the usual MRT-RRT practice for the counter staff officer to mark them off on the hearing schedule, as having arrived for the hearing. The schedule is not marked with the specific time a person arrives for a hearing.
[3] I have read the contentions of the applicant dated
3 January 2007 filed in this proceeding and examined the RRT’s file.
[4] I recall that on 28 July 2006, the applicant attended the reception counter and spoke to me, to say that he was here for his scheduled hearing. From my recollection, the applicant arrived approximately half an hour or more before the scheduled hearing time of 10.30am. I marked him off on the hearing schedule and asked him to take a sear and wait to be called. I recall him sitting at a table near the glass front wall of the reception area. I did not say anything else to him.
[5] I then rang the hearing attendant, Mr John Hough to inform him that the applicant had arrived for the hearing. The usual practice of the MRT-RRT is for hearing attendants to come to the reception counter to accompany applicants to the hearing rooms approximately 15 minutes before the scheduled hearing time. I recall that at approximately 10.15am, the hearing attendant, John Hough, came to the reception counter to accompany the applicant to the hearing room. However, the applicant could not be located in the reception area. As far as I am aware, the applicant did not approach the reception again or speak to any other MRT-RRT staff officer, after I had marked off his attendance.
[6] When John Hough and I could not locate the applicant, I went downstairs to see if he was in the café or outside the building, however, he could not be located. At John Hough’s request, after the interpreter arrived, I looked in the reception area again for the applicant and also went downstairs a second time to endeavour to locate him, but again without success.
The affidavit of John Hough sworn on 15 February 2007 and relied on by the first respondent stated as follows:
[1] I am currently employed as an administrative officer, APS level 2 at the Migration Review and Refugee Review Tribunal (“MRT-RRT”), Melbourne Registry, Level 12, 460 Lonsdale Street, Melbourne.
[2] My designated position at the RRT is that of a Member Services officer. My duties include assisting Tribunal members when hearings are conducted at the MRT-RRT. As part of those duties, it is the usual practice of the MRT-RRT for hearing attendants to attend at the reception counter to accompany applicants to the hearing rooms for their scheduled hearings.
[3] I have read the contentions of the applicant dated 3 January 2007 filed in this proceeding and examined the RRT’s file.
[4] I recall that on 28 July 2006, a counter staff officer on duty that day, Ms Patricia Brakha telephoned me and advised me that the applicant had arrived for his hearing. The hearing for the applicant was scheduled for 10.30am. I went to the reception counter approximately 15 minutes before the scheduled hearing time, that is at approximately 10.15am, to accompany the applicant to the hearing room, for the hearing. However, the applicant could not be found anywhere in the reception area. I then went and looked for the applicant in the washroom, whilst Patricia Brakha went downstairs to see if the applicant was in the café on the ground floor or outside the building. The applicant could not be located.
[5] After the interpreter for the hearing arrived at about 10.50, I asked Patricia Brakha to again endeavour to locate the applicant. She subsequently informed me that he was not in the reception area and that she had gone downstairs a second time to look for the applicant, however, he could not be located.
When the matter came on for hearing before this court, the applicant was assisted by an interpreter. He was given an opportunity to add to the evidence contained in his affidavit. The applicant’s oral evidence differed in material respects from the contents of paragraph 2 of his contentions of fact and law. When asked by the court in evidence in chief, as it were, what happened when he went to the Tribunal on the second occasion, the following exchange occurred:
INTERPRETER: On the second occasion when I went to the RRT, I went only to meet the receptionist - I met with the receptionist. I was asked to come back at a particular time, so accordingly I present at the tribunal at that time. There was no interpreter present at the tribunal. I wait there about 50 more minutes, then I ask the receptionist when will the matter be taken up for hearing. I get the impression that the matter was not for hearing that day and I left.
HER HONOUR: What gave you that impression?
INTERPRETER: I (indistinct)
HER HONOUR: What gave you that impression?
INTERPRETER: As there was no interpreter present, I thought that (indistinct) up for hearing.
HER HONOUR: What time did you arrive?
INTERPRETER: I went there, 9.30, then I (indistinct) and I told the reception that I was going and I left.
HER HONOUR: So you got there at 9.30, did you say?
INTERPRETER: I been there some time because I was - the (indistinct) asked me (indistinct) I went there and waited for some time and then left.
Under cross examination, the applicant was told that the letter inviting him to attend the hearing said it was scheduled for 10:30am on 28 July 2006. He said that he went to the Tribunal at the time specified in the letter. He said he could not give the exact time but it was in the morning. It was put to him that he had said he waited 15 minutes. The transcript indicates that he actually said 50 minutes. In any event, in response, the applicant said that he waited for 15 minutes to half an hour. He said that he spoke to the receptionist when he arrived. The following exchange then occurred:
MR MOSLEY: Yes. What was he asked to do after he was spoken to by the receptionist?
INTERPRETER: As there was no interpreter, as far as I understood, I thought that this was not for hearing that day.
The applicant said that he was asked to be present in court, so he waited until 10:00am and then spoke to the receptionist. He said that he had arrived 15 or 20 minutes before the scheduled hearing time of 10:30am. He agreed that he arrived early because the invitation asked him to arrive at least 15 minutes before the scheduled hearing time.
He said that, as the hearing was scheduled for 10.30, he arrived at about 10.10 or 10.15. The following exchange then occurred:
MR MOSLEY: Okay. So when he speaks to the counter officer, which he says he does, he's asked to do what at that point?
INTERPRETER: Yes, I asked the receptionist but there was no interpreter at that time, so from what she told me, I gathered that there was no hearing that day, then I left the place.
The applicant said that he did not speak to anyone else at the Tribunal as there was no other Sri Lankan speaking person present. The applicant confirmed that he had spent two years working in Kenya. When asked what language is spoken there, he said that he was working in a Singhalese garment factory. However, he said that he does have a little knowledge of English. It was put to the applicant that, in his protection visa application he had indicated that he speaks, reads and writes Sinhalese, English and Tamil. He replied that he can speak very little English and cannot follow the Australian accent.
The applicant denied that he was told by the receptionist to sit and wait. When asked what he was asked to do by the receptionist, he said:
INTERPRETER: I gather the impression that there was no interpreter and there was no other Singhalese person close by.
The applicant agreed that no one had told him that he should leave but he said, numerous times, that he “gathered the impression” that the hearing would not proceed on that day. He said that he only spoke to the counter staff at the time of his appointment and before that he had waited about 15 minutes or so.
The applicant agreed that he would understand if he was told in English “your hearing is on at 10:30, please wait.” However, he said that the receptionist had only said something to him about an interpreter, and he had waited about five minutes after speaking to her. When asked what gave him the impression he should leave, the applicant said that because there was no interpreter, he gathered the impression that the matter was not for hearing that day. The applicant said that he only spoke to the receptionist on one occasion and that he had waited for about fifteen minutes before speaking to her at the appointed time. He said that he had waited for about five minutes after that time and had then left the premises. The applicant said that if the interpreter had been present at the right time, none of this would have happened.
Under cross examination by the applicant, Ms Brakha said that she did not recall the applicant speaking to her at 10:30am and said that he had come to the desk when he arrived. Ms Brakha said that whenever anyone comes into the waiting area, he or she is asked who they are. She denied that the applicant had been seated in the waiting area before attending the reception desk and denied that the applicant had attended the reception desk at 10.30am.
It was put to Mr Hough by the applicant that if Mr Hough had gone to the reception area at 10.15, he would have seen the applicant there.
Mr Hough said he had no recollection of ever having seen the applicant. In answer to a question from the court, Mr Hough said that he had stated in his affidavit that the interpreter had arrived at 10:50am after checking the Tribunal’s computer and checking with the hearing team. He said both had confirmed that the interpreter arrived at 10:50am. Mr Hough said that he had waited for a considerable amount of time in the hearing room with the interpreter hoping that the applicant would come back. Mr Hough said that the interpreter had been booked on 24 July 2006 for the hearing on 28 July 2006.
In re-examination, Mr Hough said that he had gone to the reception area at approximately 10.15am and the applicant was not there.
He said he and Ms Brakha looked for the applicant for some time. He said that the Tribunal member had waited for “over an hour” but had “shut the case down” at 12:00 midday.
The applicant said in oral submissions that if he had received the impression that the interpreter was running late, he would have waited. He also said that people with a low profile were more at risk than people with a high profile. The first respondent reiterated his written submissions, and said that special leave to appeal to the High Court had been refused in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
The applicant has given a number of slightly different versions of the events of the morning of 28 July 2006 while the first respondent’s witnesses gave consistent and cohesive evidence. For this reason, where there is a divergence, I prefer the evidence of the first respondent’s witnesses. The letter inviting the applicant to attend a hearing said that the hearing was scheduled for 10.30am on 28 July 2006. It asked the applicant to arrive 15 minutes early. I find, on the balance of probabilities, that the applicant arrived at the Tribunal at some time before 10:00am on 28 July 2006 for the 10:30am hearing. He may have taken a seat in the waiting area before approaching the reception desk, but, one way or another, he reported to the receptionist at approximately 10:00am. At that time, the receptionist, Ms Brakha, asked the applicant to take a seat in the reception area and wait to be called. The applicant understood what had been said to him and he did in fact sit in the reception area and waited for about five minutes. He left the reception area and the Tribunal premises before about 10:15am when John Hough went to the reception area to escort the applicant to the hearing.
The applicant said under oath that no one had told him to leave the Tribunal premises, contrary to the unsworn claim in his contentions that he was “told by a staff member that the hearing would be rescheduled due to the non-availability of an interpreter.” I prefer the evidence of the applicant given on oath and find accordingly. The applicant left not because anyone told him that he should and not because anyone told him that the hearing would be rescheduled, but because he formed the misapprehension that the hearing would not proceed that day because the interpreter had not arrived before 10.15am.
It was not surprising that the interpreter was not present when the applicant spoke to the receptionist because that conversation occurred about half an hour before the scheduled hearing time. As it happened, the interpreter was late and did not arrive until 10:50am. However, on the most favourable version of the applicant’s own evidence, he did not wait past 10.35am. In fact, as I have found, he did not wait past about 10.15am.
The applicant initially said that he told the receptionist that he was leaving, but subsequently said that he had spoken to the receptionist only once and that conversation was not alleged to have included a statement that the applicant was leaving. The allegation that the applicant told the receptionist that he was leaving is contrary to the evidence given by Ms Brakha, which I accept. Accordingly, I find that the applicant did not tell anyone at the Tribunal that he was leaving or check whether it was appropriate to do so, even though his level of English would have enabled him to make that enquiry.
All in all, I find that the applicant left the Tribunal premises before 10:15am on 28 July 2006, at least 15 minutes before the scheduled hearing time. He did so contrary to the request that he take a seat and wait to be called.
Sections 425(1), 425A and 426A of the Migration Act 1958 (“the Act”) are as follows:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
…
(4)The notice must contain a statement of the effect of section 426A.
426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The net effect of the evidence in this case is that the Tribunal complied with its obligation to invite the applicant to attend a hearing, but that the applicant did not attend at the specified time. In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, Black CJ, Sundberg and Bennett JJ, considered a case where the applicant had been invited to attend a hearing on
11 June 2003, but telephoned a Tribunal officer the previous day and said he would not be attending because he would be at his cousin’s funeral in Sydney. The Tribunal officer asked for documentary evidence of the funeral arrangements to be provided by close of business on 12 June 2003. The applicant did not appear at the hearing on 11 June and did not provide any documentary evidence of the funeral arrangements. On 19 June 2003, the Tribunal proceeded to determine the claim in the applicant’s absence.
The primary judge in VSAF had held that the Tribunal had proceeded in dereliction of its duty. However, the Full Court unanimously held that:
[11] … Section 426A authorised that course, and we are unable to agree that it was a dereliction of the Tribunal’s duty to avail itself of the power thereby conferred.
[12] The primary judge referred to s 426A in the context of saying that an applicant’s non-attendance at a hearing does not affect the Tribunal’s obligation to review the decision but did not explain how reliance on s 426A would amount to a dereliction of duty on the Tribunal’s part. The primary judge’s decision in this respect is inconsistent with the Full Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:
"Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence." (emphasis added)
In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134, the Tribunal sent an invitation to the applicants to attend a hearing. The invitation was posted to the applicants at the address they had given the Tribunal. It was returned to the Tribunal marked “Return to Sender”. The applicants did not attend the hearing on the scheduled day. The Tribunal made no further attempt to contact the applicants and proceeded to determine the matter in their absence.
Sundberg and Hely JJ, with whom Gyles J agreed, said in VNAA at [15] that the effect of s441C of the Act was that a person is taken to have received the invitation if it is sent to his address for service as notified to the Tribunal even if he does not in fact receive it. The effect of the decision is that even if a person has no idea that a hearing has been scheduled, if the notice is sent to the proper address, the Tribunal may proceed to hear the matter in the person’s absence.
In the present case, it cannot be said that the applicant did not attend the hearing through no fault of his own. He gained a false impression, and left the Tribunal premises before the scheduled hearing time, without checking with the Tribunal staff and contrary to the request that he wait to be called. The applicant’s level of English was sufficient to enable him to understand the request to wait and also to check with Tribunal staff before leaving. However, even if the applicant had been entirely blameless, VSAF and VNAA show that the Tribunal is entitled to proceed in the absence of the applicant, provided that the appropriate invitation has been sent to the appropriate address.
The applicant in this case clearly was sent an invitation to attend a hearing on a particular date and at a particular time. Perhaps due to an unfortunate misunderstanding, he did not do so. In such circumstances, the authorities indicate that it was open to the Tribunal to proceed to determine the matter in the applicant’s absence. It is not relevant that this court might have dealt with the matter differently. The Tribunal acted in accordance with its statutory powers. It did not make a jurisdictional error in proceeding to determine the applicant’s case in his absence. This ground is not made out.
Ground 2: the Section 424A notice
The applicant’s second ground of review is as follows:
2.The Tribunal was in breach of section 424A of the Act as it has not passed to the applicant all the adverse information used in denying his application.
The applicant’s written contentions in support of this ground were as follows:
4.The Tribunal satisfied that the applicant was actively involved in the UNP the major opposition political party in Sri Lanka but not satisfied that he was ever “Deputy President” of the UNP for Ratota. It is then cast upon the tribunal to issue a notice 424A raise its concern on this issue and give an opportunity to the applicant to respond. Similarly the Tribunal was satisfied about the applicant’s injuries and complaint made to the Police but seems to doubt the assault. Again on this point the Tribunal has a duty to serve a notice under section 424A to the applicant.
The first respondent’s written submissions on this ground were as follows:
Section 424A
[19] The applicant contends that the Tribunal was required to invite him to comment, before finding that it was not satisfied that he was ever deputy president of the UNP for Rattota. The applicant submits that the Tribunal should have raised the matter in a s424A notice and that he be given an opportunity to respond. Similarly, it is submitted that the Tribunal was required to invite the applicant to comment before finding that it was not satisfied that he was ever assaulted.
[20] The Tribunal gave the applicant an invitation to comment pursuant to s424A, in respect of certain information, including information concerning his claimed role as deputy president of the UNP for Rattota. The notice relevantly said (CB 131):
“The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows:
·The information is that the Document Examination Unit considered two of the photographs you submitted could have been altered by the insertion of your image. The information also is that the Lankadeepa newspaper did not in fact carry the newspaper article, a copy of which you purported to submit, concerning yourself and Wasantha Aluvihare.
·The information also is that you claim your arm injury took place in November 2001, whereas the x-ray you submitted is dated 30 April 1999.
·The information also is that, although you claimed to have been UNP Deputy President for Rattota from 1998 to 2000, the documents you submitted indicate that you were no more than a supporter, appointed “cluster core organiser” in July 2000.
The information is relevant because it indicates that you have exaggerated your profile with the UNP and cast doubt on your claims to have been injured in campaigning.
You are invited to comment on this information. …”
[21] The notice gave particulars of those matters the Tribunal intended to rely upon. There was no breach of s424A.
[22] In rejecting the applicant’s claims, the Tribunal gave two substantive reasons, which were then further detailed in the Tribunal’s decision. It was firstly not satisfied that the applicant’s profile was such as to make him a target, and secondly he had adduced only minimal evidence of harm. There was no ‘information’ within the meaning of s424A(1) relied upon in so finding, other than that given in the invitation.
[23] The Tribunal was not of course required to give details of its assessment of the evidence. Young J, with whom Gyles and Stone JJ agreed, summarised the relevant law in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195. After setting forth the meaning of ‘information’ as considered by Allsop J in SZEEU v Minister for Immigration and Indigenous Affairs (2006) 150 FCR 214 at [204]-[205], Young J said:
[30] In contrast with the above, the Tribunal’s subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (‘Paul’) at 428 [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (‘VAF’) at 476-477 [24] per Finn and Stone JJ. The concept of information does not extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282 [26]-[27]. The distinction between ‘information’ that is part of the Tribunal’s reason on one hand, and ‘subjective appraisals’, ‘thought processes’ and ‘determinations’ of the Tribunal on the other hand, may be plain in some cases, but in other cases it may prove to be very fine, if not elusive: Paul at 428 [95]; VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 [36] (‘VWFP’).
[24] The Tribunal noted that if the applicant had attended a hearing, it would have raised various identified matters with him. Insofar as the Tribunal relied upon the absence of information, that situation has been considered in many Federal Court authorities in the context of the obligations pursuant to s424A. In Bennett J’s decision in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 her Honour, in referring to some of those authorities (footnote: see to the same effect: SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201; SZEIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801; v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238), said:
[22] The Tribunal noted that the appellant had not availed himself of the opportunity to attend the hearing and expand on his claims. Given the ‘vague and limited evidence in the application, the Tribunal [was] unable to accept that the [appellant] and family members were involved in the activities of the Congress Party or that as a result of these activities he incurred the enmity of members or supports of the BJP’. The Tribunal found that the appellant did not provide sufficient information in his application for the Tribunal to be satisfied that there was a real chance that he would suffer serious harm if he returned to India and gave examples of deficiencies in the information which could have been discussed at a hearing.
[23] As was said by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16], by Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [17] – [19] and [28] – [33] and by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29], the Tribunal was identifying the deficiencies or inadequacies in the appellant’s case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1) (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).
[24] As Mr Johnson submits, the Tribunal was not under any common law obligation to telegraph its reasons or evaluation for comment (ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592).
[25] In NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 the applicant had failed to attend the hearing and the Tribunal proceeded to make its decision. The Full Court said at [4]-[5]:
[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
[5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
Section 424A of the Act provides as follows:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
The applicant relies on two points in connection with this ground. In relation to the first, whether the applicant was ever the Deputy President of the UNP for his area, it is clear that the Tribunal sent the applicant a notice under s.424A of the Act. The notice said:
The information also is that, although you claimed to have been UNP Deputy President for Rattota from 1998 to 2000, the documents you submitted indicate that you were no more than a supporter, appointed “cluster core organiser” in July 2000.
The applicant by his agent responded to that notice and set out the applicant’s instructions on the point. To the extent that the Tribunal relied on a lack of material furnished by the applicant, the lack was not information within the meaning of s.424A: see SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] and the cases cited therein.
The second aspect of this ground is that it is said that “the Tribunal was satisfied about the applicant’s injuries and complaints made to the Police but seems to doubt the assault”. The applicant submits that the Tribunal was required in these circumstances to forward to him a s.424A notice.
The Tribunal noted that the applicant had claimed to have been assaulted in 2001 but the x-ray he submitted in support of that claim was dated 1999. The Tribunal also noted that:
If the photographs are genuine they show only that he has been hurt, but not how. … The police information report only shows that the applicant made an allegation to the police, not that the allegation is true.
These are matters of the Tribunal’s assessment of the evidence rather than items of information that the Tribunal is obliged under s.424A of the Act to give to the applicant and invite his comment on: ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. These matters do not point to a breach of s.424A of the Act.
Indeed, one item of information in this connection was provided to the applicant under s.424A of the Act, namely, that the x-ray he had submitted was dated 30 April 1999 although he claimed to have been injured in November 2001. In any event, this information was actually provided by the applicant to the Tribunal. Accordingly, under s.424A(3) of the Act, there was no need for it to form the subject of a s.424A notice. This ground is not made out.
Ground 3: not giving reasons
The applicant’s third ground of review is:
3.The Tribunal was (sic) erred in not giving reasons that it has (sic) not satisfied the applicant was assaulted and not had (sic) an active role in the UNP thereby breaching the Migration Act 1958.
The applicant’s written contentions in support of this ground were as follows:
5.The Tribunal has not explored and established the link between the applicant’s persecution and his political opinion and thereby not assessed the integer of his claims and by not doing so committed jurisdictional error.
The first respondent’s written submissions in relation to this ground were as follows:
[26] Insofar as the applicant further contends that the Tribunal has not ‘explored and established the link’ between his claimed persecution and his political opinion, the above contentions are repeated. It is patent that the Tribunal has done so on the basis of the material before it, and the finding in relation to the applicant’s profile was a finding of fact open to it on the material before it: WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79. In any event the applicant’s contention is no more than an invitation to merits review within jurisdiction.
The third ground in the application is different to the third point in the applicant’s written contentions. The Tribunal did give reasons for not being satisfied that the applicant was assaulted and for not being satisfied he was not the Deputy President of the UNP. Those reasons included:
a)the alleged assault was said to have occurred in November 2001 although the x-ray that was submitted in support of that claim was dated April 1999;
b)the documents that were provided did not substantiate the claim to have been the Deputy President or assaulted;
c)the photographs showing the applicant with the UNP leader appeared not to be genuine;
d)a newspaper article submitted by the applicant showing a photograph of himself with Wasantha Aluvihare was fabricated; and
e)the applicant had not attended a hearing at which these matters would have been discussed.
This ground is not made out.
In the applicant’s contentions, the third ground is that the Tribunal has not explored and established the link between the applicant’s persecution and his political opinion and has thereby not assessed an integer of his claims. However, it is abundantly clear, from the extracts from the Tribunal’s reasons for decision set out above, that the Tribunal did explore the claim that the applicant had been persecuted for reasons of his political opinion. It was not satisfied that he had been persecuted for that or any other reason. The Tribunal did examine all of the applicant’s claims and was not satisfied, on the basis of the evidence before it, that the applicant had a well founded fear of persecution. This ground is not made out.
Conclusion
In the circumstances, the application must be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
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